Cominos v Di Rico

Grounds of appeal and reply to appeal

1. In his Notice of Appeal, Mr Cominos contended leave to appeal should be given, the order for the payment of $47,206.30 in favour of Mr and Mrs Di Rico should be set aside, and the rectification costs claimed by him should be allowed. In summary, Mr Cominos submitted: 1. The decision was not fair and equitable because, even though the hearing was over a period of two days, he did not get the opportunity to present his evidence or explain his side of the case. After the hearing, the Tribunal directed both parties to file submissions but when Mr Cominos filed submissions and new evidence, Mr and Mrs Di Rico's counsel contended no further evidence should be accepted. His evidence and submissions filed after the proceedings were not taken into account. 2. The decision was not fair and equitable because the Tribunal had a predisposition towards the paralegal acting for Mr and Mrs Di Rico, the Tribunal seemed intimidated by their lawyer and counsel during the hearing and Mr and Mrs Di Rico's legal representatives used "court room tactics" to cloud the issues in dispute. Mr Cominos was at a disadvantage because he was not legally represented. The Tribunal upheld all objections made by the legal representatives for Mr and Mrs Di Rico out when he was "badgered" by counsel during cross examination, the Tribunal did not object on his behalf or give direction as to Mr Cominos' rights. 3. The Tribunal Member who heard the case did not have sufficient experience in building claims and did not acknowledge or recognise the industry standard for the cost of block work. In accepting the claim of Mr and Mrs Di Rico, the Tribunal made a decision that produced an unfair result. 4. The decision of the Tribunal was against the weight of the evidence. Mr Cominos attached to his submissions after the hearing on 4 March 2015 new evidence which were said to support his claim. This evidence should have been accepted by the Tribunal in preference to the evidence filed by Mr and Mrs Di Rico. 5. There was significant new evidence which was not reasonably available because it was not until the hearing, when the legal representatives for Mr and Mrs Di Rico raised new issues, that he realised further evidence was required to support his claims. For instance, on the last day of the hearing, Mr Cominos was cross-examined by counsel acting for Mr and Mrs Di Rico from lunchtime until the end of the hearing. The counsel put forward a number of scenarios that were "false and misleading." Mr Cominos had evidence to refute the assertions made by counsel and he sought to provide further evidence to establish his case but counsel for Mr and Mrs Rico objected. The Tribunal rejected this evidence and Mr Cominos now seeks to rely this evidence to establish why the decision made by the Tribunal resulted in a substantial miscarriage of justice.
2. Mr and Mrs Di Rico opposed the appeal. In summary they responded as follows: 1. The decision was fair and was based on the available evidence. Procedural directions were made by the Tribunal on 18 June 2014, whereby the parties were directed to file and serve all documents, expert witness reports, and any other witness statements within a certain period of time in accordance with the timetable. In the proceedings before the Tribunal, Mr Cominos was granted numerous extensions of time. Mr and Mrs Di Rico provided their evidence in accordance with the court timetable and relied on receipts, expert witness statements and other documents. Mr Cominos was given adequate opportunity to provide all evidence that he wished to rely on and should not be given the opportunity to rely on further evidence after the hearing. 2. Mr Cominos has not raised any error of law made by the Tribunal, nor can it be asserted that there has been a substantial miscarriage of justice. 3. The appeal should therefore be dismissed.

Issues for determination

1. Mr Cominos sought leave to appeal and, by implication, did not raise questions of law in his Notice of Appeal.
2. The Appeal Panel must give effect to the guiding principle when exercising functions under the CAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
3. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
4. Mr Cominos raises issues about whether he was denied procedural fairness; first, because he says he was not given the opportunity during the hearing to present his case, secondly, because he says the Tribunal was partial to Mr and Mrs Di Rico and he was disadvantaged by their legal representation and finally, because the Tribunal did not have regard to the evidence and submissions filed by him after the hearing. Whether there has been a denial of procedural fairness is a question of law and Mr Cominos therefore has a right of appeal on this issue.
5. If Mr Cominos is unable to establish that there was an error of law by the Tribunal in this regard, he seeks leave to appeal on the basis that there may have been a substantial miscarriage of justice for the reasons set out at [9] above.
6. Accordingly, the issues for determination by the Appeal Panel were: 1. Was there a denial of procedural fairness by the Tribunal at first instance and, if so, was this sufficient to warrant the decision being set aside? 2. If there was no error of law, should Mr Cominos be given leave to appeal under cl 12, sch 4?
7. To answer these questions it is convenient to set out the procedural history of the matter, the submissions and evidence filed by the parties, the basis for the decision at first instance, and the legal framework for the decision.

Relevant legal framework

1. The Tribunal set out the relevant legal principles at [35] to [42] of the Reasons for Decision. There was no contest raised about the Tribunal's identification of the relevant legal principles, nor could we discern any error.
2. The Tribunal correctly noted that the work undertaken by Mr Di Rico was "residential building work" as defined by the Home Building Act 1989 (NSW) (the HB Act) and the Home Building Regulation 2004 (NSW) which was the regulation in force at the time. Section 7(1) of the HB Act provides that contracts (other than small contracts) must be in writing, dated, and signed by each of the parties. Section 10(1) provides, A person who contracts to do any residential building work, or any specialist work, and who so contracts: (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6 (2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person.
3. Section 92(1) of the HB Act provides that a person must not undertake residential building work under a contract unless there is a contract of insurance in place covering the work. This is an offence under the HB Act. Section 92(2) provides, A person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work in the name under which the person contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract.
4. Mr and Mrs Di Rico did not have insurance for the residential building work at the time the work was undertaken or at the time the invoices were issued and proceedings commenced. However, insurance was obtained on 5 March 2014 and there was evidence to this effect provided to the Tribunal at first instance and to Mr Cominos (refer [89] and [90] of the Reasons for Decision).
5. Section 94 makes provision about the "effect of failure to ensure residential building work" and relevantly provides, (1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the "uninsured work" ), the contractor who did the work: (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). (1A) Despite section 92 (2) and subsection (1), if a court or Tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis. (1B) A contractor who applies to a court or Tribunal for a remedy under this section, or who is awarded money under this section, is not guilty of an offence under section 92 (2) by virtue only of that fact. (1C) Without limiting the factors that a court or Tribunal may consider in deciding what is just and equitable under subsection (1A): (a) in relation to any contract-the court or Tribunal may have regard to the impact on the resale price of the property if no contract of insurance is provided, and (b) in relation only to a contract entered into before 30 July 1999-the court or Tribunal is not to be limited by the fact that the required contract of insurance was not obtained until after the date of the contract. (2) However, the contractor remains liable for damages and subject to any other remedy in respect of any breach of the contract committed by the contractor. (3) Residential building work that is uninsured work at the time the work is done ceases to be uninsured work for the purposes of this section if the required contract of insurance for the work is subsequently obtained.
6. Notwithstanding s 10(1) of the HB Act, it is well established that a builder may recover monetary restitution under a common money count, being a reasonable sum for work done and material provided, where the person who received the benefit of the work and materials has been enriched by actual or constructive acceptance of the benefit: Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221. As noted by Deane J at [23] There is no apparent reason in justice why a builder who is precluded from enforcing an agreement should also be deprived of the ordinary common law right to bring proceedings on a common indebitatus count to recover fair and reasonable remuneration for work which he has actually done and which has been accepted by the building owner. And at [24], What the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or "enrichment" actually or constructively accepted. Ordinarily, that will correspond to the fair value of the benefit provided (e.g. remuneration calculated at a reasonable rate for work actually done or the fair market value of materials supplied). In some categories of case, however, it would be to affront rather than satisfy the requirements of good conscience and justice which inspire the concept or principle of restitution or unjust enrichment to determine what constitutes fair and just compensation for a benefit accepted by reference only to what would represent a fair remuneration for the work involved or a fair market value of materials supplied. One such category of case is that in which unsolicited but subsequently accepted work is done in improving property in circumstances where remuneration for the unsolicited work calculated at what was a reasonable rate would far exceed the enhanced value of the property. More relevant for present purposes is the special category of case where restitution is sought by one party for work which he has executed under a contract which has become unenforceable by reason of his failure to comply with the requirements of a statutory provision which was enacted to protect the other party. In that category of case, it would be contrary to the general notions of restitution or unjust enrichment if what constituted fair and just compensation for the benefit accepted by the other party were to be ascertained without regard to any identifiable real detriment sustained by that other party by reason of the failure of the first party to ensure that the requirements of the statutory provision were satisfied. [Emphasis added]
7. The Tribunal referred to Pavey & Matthews and the seminal text of K Mason, JW Carter and GJ Tolhurst, Restitution Law in Australia (2nd edition 2008 (, Lexis Nexis Butterworths) at [36] to [38] of the Reasons in Decision in support of the proposition that a builder may recover for work done and materials provided on a quantum meruit and valebat basis where there was no contractual right of recovery, or indeed, where there was a legislative prohibition on recovery of damages under the contract.
8. There was no error of law in this regard and in our view the Tribunal correctly stated the law.
9. Mr and Mrs Di Rico submitted, and this was accepted by the Tribunal (again correctly in our view), that the practical effect of s 94(3) is that the uninsured work completed in 2011 ceased to be "uninsured" and they could recover payment for their invoices on a quantum meruit and quantum valebat basis (refer to [91] and [92] of the Reasons for Decision).
10. The Tribunal further noted at [41] that residential building work must comply with the statutory warranties set out in s 18B(1) of the HB Act regardless of whether the work was performed under a written contract. These warranties include warranties that "the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract" and that "all materials supplied by the holder or person will be good and suitable for the purpose for which they are used." If any breaches of the statutory warranties was established by Mr Cominos, the Tribunal noted that damages for defective or incomplete work may be set off against any claim for payment by Mr and Mrs Di Rico (at [42]).
11. Having regard to these principles and the submissions made by the parties, the Tribunal identified the issues in dispute and made the findings and conclusions as set out below.

Submissions and evidence of the parties and decision of the Tribunal at first instance

1. The Reasons for Decision record the evidence relied on by the parties at the hearing at [28] to [31]. Mr and Mrs Di Rico relied on two affidavits of Mr Di Rico, an affidavit, attaching a report, from Mr Martin Sadlier, quantity surveyor, and statements from Alan Brewer (bobcat driver) and Roberto Di Rico (son and labourer of the Di Ricos). Mr Cominos relied on two statements sworn by him and two statements in response, also sworn by him. A number of the affidavits and statements attached various documents. There was oral evidence given by Mr D Rico, Mr Sadlier, Mr Roberto Di Rico, Mr Cominos, and Mr Denis Hunt, an engineer retained by Mr Cominos.
2. As already noted, Mr Cominos provided written submissions in support of his claim after the hearing, namely on 15 April 2015, and attached further documents as evidence in his case. These documents, the submissions made by Mr and Mrs Di Rico's legal representatives about the further documents and how they were treated by the Tribunal is referred to later in these Reasons for Decision.
3. In the proceedings before the Tribunal at first instance, Mr and Mrs Di Rico submitted: 1. Mr Cominos requested that Mr Di Rico undertake certain residential building work which he undertook, including the construction of a retaining wall and the pouring of concrete for the rear slab and the front car park, and Mr Cominos has benefited from the work done and materials supplied. Specifically, the Di Ricos asserted that without the work done and materials supplied, the subdivided property could not have been sold in December 2012 to a third party. It would be unjust and unconscionable for Mr Cominos to retain the benefit without payment. Mr Cominos freely accepted those works and Mr and Mrs Di Rico should be entitled to payment on the basis of quantum meruit and quantum valebat. 2. There was nothing to preclude recovery given they had subsequently obtained insurance in respect of the residential building work. 3. In addition, or in the alternative, Mr and Mrs Di Rico claimed that the Mr Cominos was estopped, both on the basis of conventional and equitable estoppel, from denying liability to pay and raising, so late in the piece, the issue of defective work. Mr Cominos made representations that he would pay Mr Di Rico's invoices and the invoices of third party suppliers, he paid the first two invoices without complaint and made no complaint about the work or liability for the invoices after work ceased in August 2011. Mr and Mrs Di Rico refrained from seeking to recover the unpaid invoices based on the assumption that the invoices would be paid after the subdivided property was sold. Mr Cominos did not complain about the residential building works nor disabuse them of this assumption. In this regard, the Di Ricos relied on correspondence between them and through solicitors in 2011, 2012, and 2013. 4. The amount claimed was fair and just compensation. It comprised work undertaken by Mr Di Rico as well as materials and equipment provided by Mr Di Rico through third parties, evidenced by the invoices from the third party suppliers. Evidence from Mr Sadlier supported the claim for labour. In respect of the materials provided, the Di Ricos submitted that the actual cost charged by the various services and materials providers was evidence of the fair market value, being the value of materials purchased in ordinary arm's-length transactions.
4. Mr Cominos submitted: 1. Mr and Mrs Di Rico had been paid in full for the work completed and materials supplied but, in any event, he had received no benefit because his construction costs increased as a result of Mr Di Rico's poor workmanship. 2. There was no estoppel because Mr Di Rico represented the cost of the works would be "no more than" four dollars per block laid, such price being in line with the standard price for block laying that Mr Cominos had received from other builders. He expected that Mr Di Rico would charge this "agreed sum" for the work. 3. While it is not in dispute that Mr Di Rico had completed the retaining walls and rear and front slab, Mr Cominos' obligation was only to pay the agreed sum. The amount claimed by the Di Ricos was approximately $44,000 and given that there were 3700 blocks laid by Mr Rico, this equated to a cost of $12 per block. This was not agreed, was beyond the industry standard and therefore not fair and just compensation. 4. The evidence of Mr Sadlier should be given little, if any weight, because the evidence was based on flawed assumptions and incorrect information. It was not a valuation of the work and materials supplied but rather a valuation of the entire works, including work that was not performed by Mr Di Rico. 5. He had incurred significant cost for rectification/remedial works arising out of the defective workmanship of Mr Di Rico. The front car park was not excavated in accordance with approved plans, the jumbo blocks were not used as stipulated, one of the labourers caused the dirt behind the front car park retaining wall to collapse causing damage to a pipe and the rear retaining wall was not constructed to the approved plan. Mr Cominos relied on his own evidence to support these contentions, including the documents attached to his submission dated 15 April 2015. He also relied on the evidence of Mr Denis Hunt who stated that he had inspected the rear retaining wall and observed that the wall had deflected approximately 80 mm at the top right-hand corner. 6. The cost of rectification was estimated to be $11,713.91 for the front retaining wall and $9,440.10 for the rear retaining wall. The scope of works said to have been undertaken for rectification was particularised at [66] and [67] of the Reasons for Decision.
5. In response to the claim for defective works, Mr and Mrs Di Rico submitted: 1. Allegations of breach of statutory warranty for defective and incomplete work could not be substantiated. The evidence and submissions of Mr Cominos should not be accepted because he did not have the requisite expertise to give such evidence. Further, the evidence from Mr Denis Hunt should be given little weight because, amongst other things, it was not prepared in accordance with the Tribunal Practice Direction. 2. While Mr Di Rico accepted that the front car park was excavated to an extent greater than that depicted on the council approved plans, this was because of the presence of water mains that would have impacted upon the design of the stairs in the car park. He specifically discussed this with Mr Cominos, who agreed to move the stairs. The Di Ricos should not be responsible for any additional costs arising from this when Mr Cominos had consented to the increased width in the car park. In any event the contention that the front retaining wall was required to increase in height from 1.3 metres to 3 metres by reason of the defective work could not be substantiated. 3. The further documents attached to Mr Cominos' submissions dated 15 April 2015 should not be accepted as they could not be tested under cross-examination. In any event these documents did not evidence any additional costs associated with the car park issue. 4. Mr Di Rico denied that he was on notice of the need to use jumbo blocks on the front retaining wall and any new evidence sought to be relied on by Mr Cominos in his submission dated 15 April 2015 should be rejected because it could not be tested by cross-examination. Mr Di Rico was not told to use jumbo blocks and therefore could not be held responsible for any costs associated with the failure to use such blocks. 5. The allegation that a pipe was damaged by the collapse of the retaining wall could not be substantiated and was contrary to the evidence of his son, Mr Roberto Di Rico. Furthermore, the pipe was old and rusted and was already damaged. 6. In relation to the allegation that the rear retaining wall was not constructed to the approved plan, the Di Ricos relied on the evidence of the Bobcat driver and Mr Robert Di Rico that they were instructed by Mr Cominos, over objection, to use dirt from the front car park behind the retaining wall rather than aggregate. The Di Ricos should therefore not be held responsible for this claim.
6. The Reason for Decision were lengthy, some 145 paragraphs, and detailed. There was no complaint made about the adequacy of the Reasons for Decision but rather the findings made and conclusions reached.
7. After reciting the background to the dispute, the procedural history, the legal principles, and the submissions of the parties, the Tribunal made the following findings: 1. Mr Di Rico completed three of the eight tasks he was engaged to do and ceased work on the property because Mr Cominos had not paid two of his invoices and a number of third-party invoices. Mr Cominos obtained an enrichment or benefit at Mr Di Rico's expense. Invoices for this work totalling $21,797.33 remained unpaid as did third-party invoices, totalling $25,408.97. 2. Mr Cominos freely accepted works and materials provided by Mr Di Rico and at no point did he reject the proffered services and provision of materials despite giving evidence that he was on site regularly. 3. If the work and materials provided by Mr Di Rico had not been provided, Mr Cominos would not have been in a position to subdivide the property into two parcels of land and sell one parcel in February 2013 for $495,000. 4. In all the circumstances, it would be unjust for Mr Cominos to retain the enrichment or benefit of the work and materials provided by the Di Ricos without payment. 5. There was no written contract as required by the HB Act but this did not preclude the Di Ricos from making a claim, otherwise than on the basis of the contract, for recovery under the general law principles for quantum meruit, quantum valebat, restitution, and unjust enrichment. 6. The work which was the subject of the claim was no longer uninsured was because the Di Ricos had obtained a contract of insurance for the work on 5 March 2014 (s 94(3) of the HB Act). 7. The amount claimed by the Di Ricos under the unenforceable contract of $47,206.30 was fair and just compensation for the work done and materials supplied. Mr Di Rico gave evidence that it was agreed he would charge $50 per hour, including GST, and any material and equipment would be supplied without a mark-up. Based on the evidence of Mr Sadlier, the Tribunal was satisfied that the amount claimed was about 10% to 15% less than what would have been a reasonable rate for the work done. Mr Sadlier had relied on the Rawlinson Construction Guide and his own use of the guide as a quantity surveyor of at least 15 years' experience. 8. There was no agreement that the Di Ricos would charge on the basis of $4 dollars per block laid. The Tribunal was not satisfied that the two quotations provided by Mr Cominos, which were dated at least 20 months after the initial discussions between Mr Cominos and Mr Di Rico took place, represented reasonable remuneration for the work completed by Mr Di Rico. For instance, there were limitations on the quotations provided having regard to the gradient of the property. Mr Cominos' claim was unsupported by expert evidence and the Tribunal was not satisfied that the rate of $4 dollars per block was the industry standard. 9. The third-party invoices, which were passed on without mark-up, were evidence of a fair market price. The Tribunal was therefore satisfied that the claim for the materials and equipment supplied was reasonable, as particularised in the third-party invoices. 10. Mr Cominos' claim for defective works was not established. The only evidence in support of his claim was his own evidence. The evidence of Mr Hunt was, for the reasons cited at [113], [118], and [124], not supportive of Mr Cominos' case. 11. The change in plans for the excavation of the car park was a result of the presence of water mains and Mr Cominos approved the change in the excavation. The evidence of Mr Di Rico was preferred to that of Mr Cominos in this regard. The increased costs incurred by Mr Cominos were therefore not the responsibility of the Di Ricos. 12. The Tribunal was not satisfied Mr Di Rico had been told to use jumbo blocks for the front retaining wall and so was not satisfied that any costs associated with this failure was attributable to the work performed by Mr Di Rico. A photograph provided by Mr Cominos with his submissions made on 15 April 2015, said to indicate that Mr Di Rico was aware jumbo blocks were required, carried little weight because it was not tested under cross-examination and there was no evidence provided as to how this photograph supported Mr Cominos' contention; nor was the Tribunal satisfied about the quantum of the claim. 13. There was no evidence to establish that Mr Robert Di Rico had caused a sewer pipe to burst by standing on a dirt bank behind the wall. The Tribunal accepted that the sewer pipe had broken independently of any act or omission by the Di Ricos or their subcontractors. 14. The retaining wall was constructed with incorrect fill but this was at the insistence of Mr Cominos. The Di Ricos were not responsible for any rectification. Further, the Tribunal was not satisfied on the evidence that there was a deflection in the wall that required rectification of the nature claimed. 15. In addition to the findings set out above, Mr Cominos was estopped from denying liability to pay the invoices. He was also estopped from raising any claim, by way of set off, for defective work because he had not raised any issue about this until recovery proceedings were commenced by the Di Ricos in May 2013. The Tribunal accepted the evidence of Mr Di Rico in preference to the evidence of Mr Cominos about this issue, which the Tribunal found to be supported by correspondence between the parties. 16. Mr Cominos' claim to legal costs, arising out of the transfer of the Local Court proceedings to the Tribunal, could not be claimed in these proceedings because they had already been determined by the Local Court. The principles of res judicata applied.
8. The Tribunal found that the Di Ricos had made out their case and ordered Mr Cominos to pay them $47,206.30 within 28 days of the date of the orders. The Tribunal also ordered that Mr Cominos' application be dismissed on the basis that he had not established any grounds for the relief claimed. The Tribunal rejected the Di Ricos' claim for pre-judgment interest. The Tribunal did not make any order for costs but directed the parties to confer with a view to reaching an agreement between themselves a matter of costs but if they were unable to do so, either party could have the matter relisted for argument on costs.

Procedural history of the matter

1. Given the submissions made by Mr Cominos that he was not given the opportunity to present his case, it is relevant to summarise the procedural history of the matter. This history was referred to in the Reasons for Decision at [20] to [26]. The Appeal Panel, after notifying the parties that it would have regard to those directions, reviewed a number of the written directions made by the Tribunal at first instance.
2. The Local Court proceedings were transferred to the Tribunal on 19 March 2014. The Tribunal made procedural directions for the further conduct of the proceedings on 18 June 2014. Both parties are given leave to be legally represented. Mr and Mrs Di Rico were directed to file and serve points of claim and all documents on which they wish to rely, including experts reports and witness statements, by 9 July 2014. Mr Cominos was ordered to file and serve points of defence and a copy of all of the documents that he wished to rely on, including experts reports and witness statements, by 30 July 2014. Mr and Mrs Di Rico were directed to file any evidence in reply by 13 August 2014. The parties were also directed to file and serve Scott Schedules dealing with the rectification claim.
3. The proceedings were listed for further directions on 10 September 2014 and on this date it was noted that the parties had filed and served all the evidence on which they wish to rely in respect of the claim by Mr and Mrs Di Rico. It was noted that Mr Cominos sought an extension of time to file and serve evidence in reply. He was given an extension to 24 September 2014 and it was noted that no further extensions would be granted.
4. The proceedings were listed for hearing on 28 November 2014. A transcript of the hearing was provided to the Tribunal to the Appeal Panel. At the commencement of the hearing, Mr Cominos advised that he was no longer legally represented because he was unable to afford representation at the hearing. The Tribunal Member hearing the matter explained the process and indicated to Mr Cominos that he could ask questions of the witnesses by way of cross-examination if he wished. Counsel for Mr and Mrs Di Rico opened their case by providing an outline of submissions and the evidence to be relied on. Mr Cominos was invited by the Tribunal to address in relation to his application. Mr Cominos handed up a document by way of submissions. The Tribunal adjourned to read the document and Mr Cominos was invited to expand the issues he wished to raise.
5. Mr Sadlier and Mr Di Rico gave evidence on the first day of the hearing. Mr Cominos cross-examined Mr Sadlier for approximately 30 minutes and Mr Antonio Di Rico for most of the afternoon after the hearing resumed after lunch at 2 pm.
6. The matter resumed on 4 March 2015. Mr Roberto Di Rico and Mr Denis Hunt gave evidence in the morning. It is difficult to ascertain with precision from the transcript because it was apparent the time recorded was incorrect, but it appears Mr Cominos cross-examined Mr Roberto Di Rico and examined, in chief, Mr Hunt until about 11.25am. Counsel for Mr and Mrs Di Rico cross examined Mr Hunt for about 40 minutes. Mr Cominos then proceeded to give his evidence. He was cross-examined after lunch until about 5pm.
7. At the end of this second day of the hearing, the Tribunal directed the Di Ricos to file and serve any submissions by 18 March 2015 with any submissions in response by Mr Cominos by 1 April 2015. Mr Cominos sought an extension of time and on 10 March 2015, the following orders were made: 1. The Tribunal notes that the evidence in both matters was completed on 04-Mar-2015 and that the directions made on that occasion were to afford the parties an opportunity to put submissions in their respective cases as well as submissions in reply. 2. The Tribunal further notes that it has received a request from Mr Cominos for an extension of time to provide submissions and submissions in reply as the Transcript of evidence will not be available for 10 working days. 3. The Tribunal determines that as a matter of procedural fairness to both parties (as it is noted that each party wishes to refer to the transcript in making submissions and submissions in reply) there should be an extension of time for compliance with the orders made on 04-Mar-2015. 4. The time for compliance with direction 2 made on 04-Mar-2015 is extended to 01- Apr-2015. 5. The time for compliance with direction 3 is extended to 15-Apr-2015.
8. As already noted, and as recorded in the Reasons for Decision, Mr Cominos filed submissions on 15 April 2015 to which he attached new documents that had not been previously filed and served.

Was there a denial of procedural fairness?

1. Mr Cominos submitted he was not given the opportunity to present his case, the Tribunal was partial to Mr and Mrs Di Rico and their legal representatives, and the Tribunal improperly failed to have regard to his submissions and evidence of 15 April 2015. He was not treated fairly and therefore the decision was not fair and equitable. We also take this submission to be a claim that he was denied procedural fairness.
2. In his written and oral submissions, Mr Cominos stated he was not given a fair chance to put forward his case during the hearing and was disadvantaged because Mr and Mrs Di Rico had legal representatives acting for them. Mr Cominos stated that he was interrupted all the time and the Tribunal often ruled in favour of Mr and Mrs Di Rico's lawyers. He further submitted that Mr and Mrs Di Rico's legal representatives "took the two full days to present their case and cross-examine him" and "I did not get the opportunity to present any of my evidence or explain my side of the case."
3. We reject these submissions.
4. In relation to the first two contentions raised by Mr Cominos, we do not accept that he was not given the opportunity to present his case during the hearing or that the Tribunal was partial to Mr and Mrs Di Rico because they were legally represented. The transcript of both hearing days were provided to the Appeal Panel and close examination of the transcript does not bear this out.
5. Both parties were given the opportunity to give an oral opening of their case. According to the transcript for 28 November 2014, Mr Cominos handed up a further document for consideration by the Tribunal on the morning of the hearing. It was apparent this document had not been previously filed and served. The Tribunal read the document after a short adjournment. Evidence was tendered by both parties and the transcript records that Mr Cominos cross-examined Mr Sadlier, Mr Antonio Di Rico and Mr Roberto Di Rico for lengthy periods. His questioning was occasionally interrupted with objections by counsel for Mr and Mrs Di Rico about the nature of his questioning, which sometimes included double-barrelled questions, questions with assumptions and questions with propositions that were not based on any existing evidence before the Tribunal. Notwithstanding this, there were instances where the Tribunal: 1. Attempted to assist Mr Cominos by explaining cross-examination to him and, in some instances, assisting him to formulate questions for cross-examination (for instance, see T56 to T60, 28 November 2014); 2. Intervened to insist on a witness answering Mr Cominos' questions (for instance, during the cross-examination of Mr Roberto Di Rico at T13, T19 and T27 on 4 March 2015); and 3. Rejected objections taken by counsel for Mr and Mrs Di Rico (for instance, see T25 on 4 March 2015).
6. When the whole of the transcript is reviewed, it is clear that Mr Cominos was given an opportunity to present his case over the two-day hearing, including making oral submissions and asking questions of witnesses. At least half of the time allocated to the hearing, possibly more, was taken up with Mr Cominos making submissions, asking his witness, Mr Hunt, questions and cross-examining Mr Sadlier, Mr Antonio Di Rico, and Mr Roberto Di Rico.
7. Mr Cominos asserts that the Tribunal Member was "irate" by the end of each day and that he was upset the hearing was taking too long. While it is true that both hearing days did not finish until 5 pm, the Member gave Mr Cominos the opportunity to pursue his line of questioning, even when it was confusing or misdirected. There is no evidence the Tribunal cut off or admonished Mr Cominos at the end of either day for taking too long. As noted by the Member on a number of occasions, and this was borne out in the transcript, he gave Mr Cominos "leeway" because he was not legally represented.
8. Near the end of the second day of the hearing the Member had an exchange with counsel for Mr and Mrs Di Rico, not Mr Cominos, which exemplified what we consider to be the even handed approach adopted by the Tribunal during the hearing (at T175, 4 March 2015): MEMBER: It is now actually quarter to five, so you're going to need to wind it up in the next 5 minutes or so because I'll need to make some orders on the record before the tape finishes. ROSS: Mr Charles, I am in a very difficult situation. This is a witness of fact, the only witness of fact. MEMBER: Yes. ROSS: With respect, the majority of the two days that we've had have been taken up with the issues that haven't been caused by my client. MEMBER: Do you want me to adjourn the matter then? I wish you could have told me that at 3.30. ROSS: I made it quite clear. MEMBER: I tried. I tried to give you enough time to finish this case, but the recording finishes at five o'clock. ROSS: I understand that. MEMBER: So you've got 15 minutes please. Go ahead.
9. Mr Cominos submitted he was "badgered" by counsel for Mr and Mrs Di Rico and that the Tribunal should have intervened. While it is true Mr Cominos was cross-examined for the whole of the afternoon of the second day of the hearing, counsel for Mr and Mrs di Rico was questioning Mr Cominos about documents, his own statements and evidence on the first day of the hearing referred to in the transcript. The cross-examination was robust, not badgering or unfair, and counsel challenged Mr Cominos about the evidence given by him that was inconsistent with Mr and Mrs Di Rico's case. This was to be expected. Relevantly, the Tribunal did intervene on a number of occasions. For instance, at T126 on 4 March 2015, when counsel questioned Mr Cominos repeatedly about a matter, the Member interrupted the questioning and said to Mr Cominos the following: Before you answer some of these questions Mr Cominos do you need time to have a look at the spreadsheet? Some very specific questions have been put to you by Ms Ross and I would understand if you needed a little bit of time to consider. Now if you do, you should say so and then have a look at the document.
10. Further, at T130 the transcript on 4 March 2015, when Mr Cominos was being questioned by counsel, the Tribunal interrupted counsel and stated as follows: All right, well I'm going to give you some time to track down that document that you think will answer the question that was put to you by Ms Ross. Go ahead. Well I'll take a short break and you can take a short break while that's happening. I'll be back in a couple of minutes. Please understand we do have to finish by 4 o'clock.
11. In summary, the Appeal Panel is satisfied the Tribunal not only gave Mr Cominos adequate opportunity to present his case but also took a number of steps to assist him to understand the nature of the proceedings (refer s 38 (5)(a) of the CAT Act). There is no evidence that the Tribunal treated Mr and Mrs Di Rico more favourably in the conduct of the case. The Tribunal was even handed and if anything, more inclined to readdress any perceived imbalance by giving Mr Cominos leeway on his questioning (refer T90, 28 November 2014).
12. We also reject the submission that the Tribunal improperly rejected his submissions and the new evidence filed on 15 April 2015.
13. Procedural directions were made by the Tribunal on 18 June 2014 and 10 September 2014. They were clear in their terms. The parties were to file and serve all evidence on which they wished to rely in accordance with the timetable provided. Both parties filed and served evidence prior the hearing, although Mr and Mrs Di Rico filed further evidence, being statements from Roberto di Rico and Alan Brewer, in February 2015.
14. Attached to Mr Cominos' submission of 15 April 2015 were documents which were said by Mr Cominos to disprove a number of "unsubstantiated claims" made by Mr and Mrs Di Rico's counsel. These documents comprised documents that had previously been filed and served and new documents, such as photographs (for example, Appendix 17), a letter from a demolition contractor stating there was no broken sewer behind the wall when he removed dirt in 2011 (Appendix 20) and a quotation dated 25 March 2015 for materials (Appendix 40).
15. The Tribunal referred to these documents at [34] of the Reasons for Decision and noted: The home owner submits, among other things, that the further documents address matters arising out of cross examination of him by the builder's legal representative and in respect of which (due to time constraints) he could not respond at the conclusion of the evidence on 4 March 2015. Although the home owner has not been cross examined on the further documents, the builder's representative has had an opportunity to address the further documents in her submissions in reply, particularly as regards their relevance and probity. Accordingly, I have decided to read the further documents as part of the home owner's case but only in the context of their relevance and probity for material matters for determination by the Tribunal.
16. The Tribunal specifically dealt with Appendix 17 at [116] of the Reasons, noting that the photograph 'was of no assistance to the Tribunal' because there was no evidence to establish what the photograph depicted. Mr Cominos submitted that this photograph shows the starter bars laid ready for the concrete to be poured and that this proved Mr Di Rico was aware jumbo blocks were required. Having reviewed the photograph, the Appeal Panel accepts the finding of the Tribunal that, without more, this photograph would have been of limited utility to the Tribunal in determining a disputed question of fact, particularly since it was not put to Mr Di Rico in cross examination. Ultimately, this question was determined by the Tribunal in favour of Mr and Mrs Di Rico on the basis of the evidence of Mr Di Rico, Mr Hunt and Mr Cominos, all of whom were cross examined on this issue.
17. It is therefore clear from the Reasons for Decision that the Tribunal did in fact consider the submissions of Mr Cominos and documents attached to those submissions, including some of the new material. For instance, the Tribunal referred to the progress inspection reports from the Council and the photograph at Appendix 17 and submissions made by Mr Cominos in relation to those matters.
18. One notable exception is the statement from the demolition contractor (Appendix 20) to which the Tribunal did not refer in its Reasons. However, in our view this discloses no error or procedural unfairness. This letter was submitted after the hearing and was evidence about a disputed fact. The statement made could not be tested. It would have been a denial of procedural fairness to Mr and Mrs Di Rico to give any weight to this letter when Mr and Mrs Di Rico did not have the opportunity to address the issue and test the statement made through cross examination of the witness. Mr Cominos had already been given the opportunity to file and serve the evidence on which he wished to rely. He knew this issue was disputed and knew that Mr and Mrs Di Rico claimed the sewer pipe was already broken. Mr Cominos should have presented this evidence prior to the hearing on 4 March 2015 but he did not do so.
19. Given the complaints raised by Mr Cominos about the conduct of the hearing and the disadvantage he contends he experienced because Mr and Mrs Di Rico were legally represented and he was not, it is apposite to consider the observations made by the Gleeson JA (with whom Beazley P and Barrett JA agreed) in Bauskis v Liew. His Honour summarised the relevant principles and authorities relating to the Court's duty to unrepresented litigants (citing Hamod v State of New South Wales) as follows at [67] to [70]: 67 First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. 68 Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]- [53]. 69 Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. 70 Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14.
20. Those principles apply equally to this Tribunal.
21. In our view, the Tribunal discharged these obligations. The Tribunal explained the nature of the proceedings to Mr Cominos, intervened where appropriate, gave him time to consider his position and gave him leeway in his questioning of his own and the other parties' witnesses. The Tribunal was also obliged to afford Mr and Mrs Di Rico procedural fairness and to give new evidence filed by Mr Cominos significant weight when it was not tested through cross examination and inconsistent with other evidence, would have been unfair.
22. Accordingly, we are not satisfied there has been a denial of procedural fairness by the Tribunal and we reject this ground of appeal.

Should the Appeal Panel give leave to appeal?

1. Because we have rejected the ground of appeal based on procedural fairness, which is a question of law, Mr Cominos needs leave to appeal.
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled.
3. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel of the Tribunal conducted a review of the relevant cases and set out the principles at [84]. In summary, for leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
4. Mr Cominos contends that the decision of the Tribunal was not fair and equitable because he was not given the opportunity to present his case. The Appeal Panel rejects these submissions for the reasons previously outlined.
5. Mr Cominos also contends that the decision was against the weight of evidence and that crucial evidence presented by him, as attached to his submissions, was wrongfully dismissed by the Tribunal. For the reasons previously outlined, we also reject these submissions. The Reasons for Decision disclose a considered examination of the submissions and evidence relied on by the parties. There is no evidence that the Tribunal went about the fact finding process in an unorthodox manner that produced an unfair result. This is a case where the Tribunal at first instance made a number of findings that were reasonably open based on the evidence and after a contested hearing. Mr Cominos does not agree with these findings or orders but this is not enough to justify leave to appeal.
6. The Appeal Panel is therefore not satisfied there has been an injustice that is reasonably clear or that it would be unjust to allow the decision to stand.
7. For these reasons, the Appeal Panel refuses leave to appeal

Conclusion

1. In so far as Mr Cominos raised an error of law, being a denial of procedural fairness by the Tribunal at first instance, the Appeal Panel finds there was no error of law. Accordingly the appeal is dismissed.
2. In so far as Mr Cominos seeks leave to appeal, leave is refused.
3. The Tribunal at first instance has not yet determined the question of costs and made directions about the parties conferring and, in the absence of agreement, having the matter relisted for hearing. This order was stayed by the Appeal Panel pending the appeal. Given the appeal has been dismissed, the stay should be lifted and the costs issue should be determined by the Tribunal in the usual course.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 January 2016